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Nancy J. Gray, public defender, of Concord, by brief and orally, for
the defendant.

JOHNSON, J. Following a jury trial in the Superior Court (Morrill,
J.), the defendant, Brian Scott Smith, was convicted of two counts of passing
bad checks in November 1993. See RSA 638:4 (1986 & Supp. 1993)
(amended 1993). He appeals, arguing that the superior court erred in: (1)
denying his motion to suppress evidence the police seized while searching his
home; and (2) admitting evidence in the State's case in chief of nineteen prior
bad check convictions under New Hampshire Rule of Evidence 404(b). We affirm.

I. Motion to Suppress

The defendant first argues that the superior court should have granted his
motion to suppress evidence seized from his home. In his brief, the defendant
contests the seizure of items from his living room and bedroom, but in his
notice of appeal, he made no objection to the items found in his living room. He
has therefore waived any objection to the admission of those items, seeSup. Ct. R. 16(3)(b); State v. Peterson, 135 N.H. 713, 714-15, 609
A.2d 749, 750-51 (1992), and we confine our discussion accordingly.

In December 1993, Detective Mark Phelps learned that the defendant had used
bad checks to purchase two chain saws and a wood stove. Phelps contacted the
defendant's wife, who told him that the articles were in the couple's trailer
and that the police could come and retrieve them. On December 22, Phelps and two
other officers drove to the trailer and knocked on the door. Phelps heard
footsteps inside, but no one answered. The chain saws and wood stove were
visible through a window.

Phelps left to apply for a search warrant, while the other two officers
stayed behind. One of the remaining officers testified:

Two females left that trailer and then some time passed and one of the
females returned, went inside the trailer, exited the trailer after a couple of
minutes and got back in the vehicle and left. As she was leaving, she tooted the
horn a couple of times and then left the area.

When Phelps returned with a search warrant, the officers again knocked on the
trailer door, but still no one answered. The officers opened the door, which was
unlocked, and entered. They saw the chain saws and wood stove in the living
room, approximately twenty feet from the door.

The officers then searched the rest of the trailer. At the suppression
hearing, Phelps explained:

A Chief Polland had advised us before we had entered on the search warrant
that they had picked [the defendant] up from the Lebanon police department and
he had two guns at that point. But the lieutenant had only taken one gun with
him, so we were concerned that there may have been a subject in there from the
footsteps we had heard and that there may have been a weapon in there.

Q Had Chief Polland told you where he had observed the weapons?

A In the bedroom next to the bed.

Q Was there any other reason that you continued searching the trailer?

A Also the male subject - Brian Smith - there was [a National Crime
Information Center] warrant out of Lynchburg, Virginia for him.

Phelps also testified that he believed there was an outstanding bench warrant
for the defendant's arrest "for jumping bail," and stated that his "primary
objective" in searching the rest of the trailer was to ensure "officer safety."
When the defense attorney questioned Phelps about the search, Phelps answered:
"Well, are you going to immediately pick up a five hundred pound wood stove and
walk out? No. We are going to have to take a few minutes to secure that, put it
on a cart and remove that. In that time somebody could come down the hallway."
Another officer gave a similar explanation for the decision to secure the
trailer:

I had been told also that there might be a possible weapon in the trailer,
because one weapon had been taken earlier in time and also I had been told by
the Lebanon police department that they had a bench warrant for the respondent,
who had failed to appear for a probable cause hearing.

While searching the rest of the trailer, Phelps entered the bedroom. There he
or another officer found and seized the items at issue in this appeal: a check
imprinting machine, a box of blank checks, and carbons from copies of checks.
The officers testified that these items were "in plain view" on a counter and on
the floor.

The defendant moved prior to trial to suppress the items from evidence, but
the superior court ruled them admissible, citing the plain view exception to the
warrant requirement. SeeState v. Murray, 134 N.H. 613, 615, 598
A.2d 206, 207 (1991). The court found the officers' search of the bedroom a
legitimate, protective sweep, and thus determined that the officers had a right
to be in the bedroom when they saw the items. SeeMaryland v.
Buie, 494 U.S. 325, 327 (1990); United States v. Daoust, 916 F.2d
757, 759 (1st Cir. 1990).

The defendant argues that the denial of his suppression motion violated his
rights under the State and Federal Constitutions. See U.S. CONST. amend.
IV; N.H. CONST. pt. I, art. 19. We affirm the court's ruling based on our
interpretation of the State Constitution. SeeState v. Ball, 124
N.H. 226, 232, 471 A.2d 347, 351 (1983). The Federal Constitution provides the
defendant with no greater protections in this context. SeeBuie,
494 U.S. at 327; Daoust, 916 F.2d at 759; compareHorton v.
California, 496 U.S. 128, 130 (1990) (under Federal Constitution, plain view
exception does not require inadvertent discovery) withMurray, 134
N.H. at 615, 598 A.2d at 207 (under State Constitution, plain view exception
requires inadvertent discovery). We therefore make no holding under the Federal
Constitution and use federal cases only as guides to our State constitutional
analysis. State v. Fitzgerald, 137 N.H. 23, 26, 622 A.2d 1245, 1246
(1993); seeMichigan v. Long, 463 U.S. 1032, 1040-41 (1983).

The starting point for our analysis is part I, article 19 of our
constitution, which provides that "[e]very subject hath a right to be secure
from all unreasonable searches and seizures of his person, his houses, his
papers, and all his possessions." "[W]arrantless entries are perse unreasonable and illegal, unless the entry is made pursuant to one of
a few recognized exceptions." State v. Santana, 133 N.H. 798, 803, 586
A.2d 77, 80 (1991) (quotation omitted). "Absent a warrant, the burden is on the
State to prove that the search was valid pursuant to one of these exceptions."
State v. Sterndale, 139 N.H. 445, 447, 656 A.2d 409, 410 (1995).

This court has recognized a plain view exception to the warrant requirement
under the State Constitution.

[T]here are three criteria that the State must prove by a preponderance of
the evidence for justifying a seizure under this exception: (1) [t]he initial
intrusion which afforded the view must have been lawful; (2) the discovery of
the evidence must have been inadvertent; and (3) the incriminating nature of the
evidence must have been immediately apparent.

Murray, 134 N.H. at 615, 598 A.2d at 207 (quotation omitted). The
defendant argues only the first criterion, contending that the police were not
lawfully in his bedroom when they discovered the items at issue.

The State argues that the police had a legitimate concern for their safety
when they entered the defendant's trailer and that this concern justified a
protective sweep of the bedroom. We agree. In Buie, the United States
Supreme Court held that under the principles of Terry v. Ohio, 392 U.S. 1
(1968), and Michigan v. Long, 463 U.S. 1032, "[t]he Fourth Amendment
permits a properly limited protective sweep in conjunction with an in-home
arrest when the searching officer possesses a reasonable belief based on
specific and articulable facts that the area to be swept harbors an individual
posing a danger to those on the arrest scene." Buie, 494 U.S. at 337.
Such a sweep, "aimed at protecting the arresting officers, if justified by the
circumstances," id. at 335, is properly limited if it extends "only to a
cursory inspection of those spaces where a person may be found. The sweep [may]
last[] no longer than is necessary to dispel the reasonable suspicion of danger
and in any event no longer than it takes to complete the arrest and depart the
premises," id. Seegenerally 3 W. LaFave, Search and
Seizure: A Treatise on the Fourth Amendment 6.4(c), at 323-35 (3d ed. 1996).
The United States Court of Appeals for the First Circuit has applied the
Buie holding to protective sweeps made, as here, in conjunction with a
search warrant. Daoust, 916 F.2d at 759.

Professor LaFave notes that courts sometimes reject searches beyond the area
permitted by the warrant, but states: "[I]t does seem that self-protection is a
legitimate factor to be taken into account and that sometimes a protective sweep
beyond the boundaries stated in the search warrant would be reasonable." 2
LaFave, supra 4.10(a), at 659. Although intrusions into a person's home
should never be undertaken lightly because of the "strong expectation of privacy
and protection from government intrusion," Santana, 133 N.H. at 803, 586
A.2d at 80 (quotation omitted), we recognize that there an officer sometimes
faces the greatest danger. An officer on an "adversary's 'turf' . . . [risks]
ambush in a confined setting of unknown configuration." Buie, 494 U.S. at
333.

We have previously recognized the reasonableness of limited intrusions for
the protection of police officers and others, seeState v.
Theodosopoulos, 119 N.H. 573, 582, 409 A.2d 1134, 1140 (1979), cert.
denied, 446 U.S. 983 (1980); State v. Gosselin, 117 N.H. 115,
119-20, 370 A.2d 264, 268-69 (1977). Moreover, we have adopted the holding of
Terry, 392 U.S. at 30, seeState v. Brodeur, 126 N.H. 411,
415, 493 A.2d 1134, 1137 (1985), which is the foundation for Buie and
Daoust, seeBuie, 494 U.S. at 331-34; Daoust, 916
F.2d at 759. We hold that the principles stated in Buie and Daoust
are legitimate extensions of our own search and seizure law under part I,
article 19 of the New Hampshire Constitution. Our constitution should not be
interpreted to deny police officers the right to protect themselves from harm.
Cf. 3 LaFave, supra 6.4(c), at 324. "Certainly it would be
unreasonable to require that police officers take unnecessary risks in the
performance of their duties." Terry, 392 U.S. at 23. We believe that the
test articulated in Buie, quoted above, correctly "balanc[es] the need to
search against the invasion which the search entails," id. at 21
(quotation and brackets omitted), and thus heeds our constitution's proscription
against unreasonable searches.

The question remains whether the search of the defendant's bedroom complied
with the requirements of Buie. We hold that it did. At the time the
officers decided to conduct the protective sweep, they knew that the defendant
had skipped bail and that there was an outstanding warrant for his arrest. They
also knew that the defendant owned a gun, and that this gun was last seen in his
bedroom. Finally, they knew that, when they arrived at the trailer, someone was
inside and refused to come to the door after they knocked and announced their
presence. Although two women later left the trailer, one of them sounded her car
horn as she drove away.

Based on these "specific and articulable facts," Buie, 494 U.S. at
337, the police could have had "a reasonable belief . . . that the area to be
swept harbor[ed] an individual posing a danger to those on the arrest scene,"
id. The woman's use of the car horn is puzzling and could have been
explained as a signal to someone still in the trailer. The outstanding arrest
warrant and the defendant's act of skipping bail paint him as a person willing
to defy authority. The officers' information about the gun also raised a
legitimate and substantial concern for their safety. Accordingly, the police
were permitted to conduct "a cursory inspection of those spaces where a person
may be found." Buie, 494 U.S. at 335.

The defendant argues that the officers' search of his bedroom was not cursory
and not properly limited. In support, he states in his brief that the police

looked through the back bedroom closely enough to identify a Paymaster check
imprinter . . . [and] read checks as made out to DMS Rentals and read the amount
of one check made out to Amigo Rentals. They were, also, able to read that a box
of checks that was lying on the floor were made out to Amigo Rentals.

(Citations omitted.)

We find the officers' identification of these items consistent with a
limited, cursory inspection of the bedroom. The trial court so found after
hearing testimony and assessing the witnesses' credibility. Upon review of the
record, we cannot say that no reasonable trier of fact could have reached that
conclusion. An officer searching places where someone could be hiding could
easily spot and identify such objects. The officers found the items on a counter
and on the floor of the bedroom. It should be remembered that the police were
investigating a case involving several bad checks; it does not strain logic to
assume that their eyes were instantly drawn to anything related to
check-writing. We reject the defendant's argument and conclude that the superior
court properly denied his motion to suppress.

II. Prior Convictions

The defendant next contends that the superior court erred in admitting
evidence of his nineteen prior bad check convictions under Rule 404(b). We
agree.

Evidence of other crimes is not admissible unless: (1) it is relevant for a
purpose other than to show the defendant's bad character or disposition; (2)
there is clear proof that the defendant committed the other crimes or acts; and
(3) prejudice to the defendant does not substantially outweigh the probative
value of the evidence.

State v. Bassett, 139 N.H. 493, 496, 659 A.2d 891, 894 (1995). The
evidence of the prior convictions fails the first prong of this test. The State
bore the burden of proving that the defendant passed the checks knowing that the
account on which they were drawn had insufficient funds for payment. See
RSA 638:4. The trial court admitted the prior convictions to prove intent, but
the prosecutor read them into evidence without stating whether any of
them involved the account at issue in this case. The prior convictions were
therefore relevant to intent only if the jury drew the impermissible inference
that, because the defendant knowingly passed bad checks before, he must have
done so on this occasion. SeeBassett, 139 N.H. at 500, 659 A.2d
at 896. Accordingly, we hold that the trial court erred in admitting the prior
bad check convictions.

III. Harmless Error

Although the trial court erred, the State correctly contends that this case
presents the rare instance of a harmless Rule 404(b) error. SeeState
v. Davis, 139 N.H. 185, 192, 650 A.2d 1386, 1390 (1994). The standard for
ascertaining whether an error can be deemed harmless is as follows:

In determining the gravity of an error, this court asks whether it can be
said beyond a reasonable doubt that the inadmissible evidence did not affect the
verdict. The evaluation of whether this standard has been achieved involves
consideration of the alternative evidence presented at trial and of the
character of the inadmissible evidence itself. An error may be harmless beyond a
reasonable doubt if the alternative evidence of the defendant's guilt is of an
overwhelming nature, quantity, or weight and if the inadmissible evidence is
merely cumulative or inconsequential in relation to the strength of the State's
evidence of guilt.

To prove that the defendant committed the charged offenses, the State had to
show that: (1) the defendant issued or passed the checks in question; (2) the
drawee refused payment on the checks; and (3) the defendant knew or believed
that payment would be refused. RSA 638:4. The prosecutor and the defense
attorney stipulated at trial that the defendant passed the checks. Thus, the
State had only to prove that the drawee refused payment on the checks and that
the defendant knew or believed that this would happen.

Evidence that the drawee refused payment on the checks was uncontroverted.
The two store managers who accepted the checks testified at trial. Each stated
that the drawee refused payment. The jury heard no contradicting evidence, and
in closing, the defense attorney did not dispute the issue whatsoever.

Evidence of the defendant's intent was equally compelling. The defendant
passed the checks on November 21 and 28, 1993. A September 10, 1992, letter to
the defendant's wife informed her that the account on which the checks were
written had been closed. According to the testimony of two police officers, the
defendant twice admitted knowing the status of the account before he passed the
checks. One officer from Lynchburg, Virginia stated that he met with the
defendant on October 8, 1993, to discuss other checks that had been written on
that account. At that meeting, the officer informed the defendant that the
account had been closed. The defendant promised to remedy the problem, but never
did, to the officer's knowledge. The other officer, from Lebanon, testified that
he spoke with the defendant on December 16, 1993, to discuss one of the checks
at issue in this case. The defendant denied passing the check but admitted
knowing in early November 1993 that the account had been closed. During
cross-examination and in closing argument, the defense attorney made no attempt
to impugn either of the officers' credibility. In a brief closing argument, the
attorney implied that the defendant had indeed made the admission that he knew
the account was closed, but suggested that the defendant did so in order to
protect his wife, although there was not a shred of evidence in the record that
the defendant's wife passed the checks in question.

As in Vandebogart, "the nature, quantity, and weight of [this
evidence] can only be described as overwhelming." Vandebogart, 139 N.H.
at 158, 652 A.2d at 679; seealsoState v. Fecteau, 133
N.H. 860, 869, 587 A.2d 591, 595-96 (1991); State v. Green, 133 N.H. 249,
260, 575 A.2d 1308, 1315 (1990). Although the admission of the defendant's prior
convictions undoubtedly prejudiced him, seeBassett, 139 N.H. at
502, 659 A.2d at 898, a review of the record puts to rest any concern that their
admission denied the defendant a fair verdict. The prosecutor introduced them
simply by reading the date of each conviction, the name of the offense, and the
rendering jurisdiction. She supplied none of the details or circumstances of the
crimes and made no further mention of them, even in her closing argument to the
jury.

In addition, the prior convictions did not involve acts of an "odious [or]
provocative nature," State v. Carter, 140 N.H. 1, 5, 662 A.2d 289, 291
(1995), such as sexual assault or homicide. Thus, this evidence was less likely
to "appeal[] to the jury's sympathies, arouse[] its sense of horror, provoke[]
its instinct to punish, or trigger[] other mainsprings of human action [that]
may cause a jury to base its decision on something other than the established
propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's
Evidence 404[03], at 403-37 to 403-41 (1995) (construing Federal Rule of
Evidence 403). Thus, the prior convictions were "inconsequential in relation to
the strength of the State's evidence of guilt," Vandebogart, 139 N.H. at
158, 652 A.2d at 679, leading to the conclusion, beyond a reasonable doubt, that
the inadmissible evidence did not affect the verdict, id. at 157, 652
A.2d at 679. This case presents a rare instance of an erroneous, but harmless
admission of evidence pursuant to Rule 404(b). This finding of harmlessness in
no way weakens our holdings in recent opinions construing Rule 404(b).
See, e.g., Bassett, 139 N.H. at 499-502, 659 A.2d at
896-98.

THAYER, J., concurring specially: This case again highlights the different
views held by members of this court concerning what types of evidence are
relevant under New Hampshire Rule of Evidence 404(b). Although I concur in the
result reached in the opinion of Justice Johnson, I write separately to explain
why I believe the trial court correctly held that the defendant's prior
convictions were relevant.

The defendant was charged with two counts of passing bad checks. See
RSA 638:4 (1986 & Supp. 1993) (amended 1993). His criminal record included
nineteen prior convictions for similar offenses. At trial, in an effort to prove
that the defendant knowingly committed the crimes charged, the prosecutor read
into evidence all of the defendant's prior convictions. In each case, the
prosecutor referred to the specific crime charged and in most cases also
referred to the date of the conviction and the location of the offense. With
three of the prior convictions, the prosecutor mentioned that the bank on which
the bad checks were drawn was the same bank involved in this case.

As early as 1876, we held that this type of evidence could be relevant.
State v. Lapage, 57 N.H. 245 (1876). In Lapage, we explained that
when a defendant is charged with a crime involving counterfeit money, proof that
the defendant previously engaged in similar conduct is relevant to demonstrate
that he knowingly did so again. We reasoned:

It might well happen that a person might have in his possession a single
counterfeit bill or coin without knowing it to be such; but he would be much
less likely to do so twice, and every repetition of such an act would increase
the probability that he knew that the bills or coins were counterfeit.

Id. at 293-94. The reasoning in Lapage applies with equal force
in this case. The fact that the defendant wrote bad checks in the past makes it
more likely that he knowingly wrote the bad checks at issue here because his
prior experience would have made him aware of his financial circumstances and
less likely to unintentionally write a check on a closed account. Cf.
State v. Anderson, 912 P.2d 801, 804 (Mont. 1996) (evidence of prior
conviction for bad check offense relevant under Rule 404(b) on issue of intent).
The rules of relevance require no greater connection between the charged conduct
and the prior bad acts. SeeN.H. R. Ev. 401; State v.
McGlew, 139 N.H. 505, 507, 658 A.2d 1191, 1193 (1995).

A majority of this court holds that the defendant's prior convictions should
have been excluded from evidence because "the prosecutor [introduced the
convictions] . . . without stating whether any of them involved the account at
issue in this case." That majority apparently believes that for the prior
offenses to be relevant, they must have involved the same account as the one at
issue here. It does not offer reasons to justify that limitation; nor does it
attempt to distinguish our prior case law. SeeLapage, 57 N.H. at
293-94.

In addition to believing that the defendant's prior convictions were
relevant, I also believe the other two prongs of the Rule 404(b) analysis were
met. State v. Bassett, 139 N.H. 493, 496, 659 A.2d 891, 894 (1995).
Accordingly, I would affirm the trial court's ruling that the prior convictions
were admissible under Rule 404(b).

HORTON, J., joins in the special concurrence.

BRODERICK, J., concurring in part and dissenting in part: I agree with the
opinion of Justice Johnson that the trial court was correct in denying the
defendant's motion to suppress. But I cannot concur in the conclusion that the
erroneous admission of the defendant's nineteen prior convictions was harmless
error; accordingly, I respectfully dissent from part III of the opinion of
Justice Johnson.

I

The defendant was charged with two counts of passing bad checks. See
RSA 638:4 (1986 & Supp. 1993) (amended 1993). Before trial, the defendant
sought to prevent the introduction of evidence of his nineteen prior convictions
for bad check offenses. The trial court ruled the prior convictions admissible
to prove intent. At the conclusion of the trial, the court instructed the jury
that it could consider the prior convictions only in respect to the question
whether the defendant possessed the requisite criminal intent to pass the bad
checks at issue. Following this instruction, the prosecutor proceeded to read
into the record, without additional explanation, each of the prior convictions
and, for some, the date of the offense, the State in which it occurred, and the
bank involved.

Evidence of other bad acts is admissible under New Hampshire Rule of Evidence
404(b) only "if relevant for a purpose other than to prove the defendant's
character or disposition, if there is clear proof the defendant committed the
other acts, and if the prejudice to the defendant does not substantially
outweigh the probative value of the evidence." State v. Kirsch, 139 N.H.
647, 653, 662 A.2d 937, 942 (1995). We will not disturb the trial court's
decision to admit such evidence absent an abuse of discretion. Id.

Evidence of the defendant's prior convictions was irrelevant under the first
prong of the Rule 404(b) analysis. The State sought to introduce evidence of the
prior convictions for bad check offenses to prove that he committed the crimes
charged with the requisite intent. "To be relevant to intent, evidence of other
bad acts must be able to support a reliable inference, not dependent on the
defendant's character or propensity, that the defendant had the same intent on
the occasions of the charged and [prior] acts." State v. Bassett, 139
N.H. 493, 499, 659 A.2d 891, 897 (1995). In this case, it is unclear how the
defendant's intent on prior occasions is probative of his intent to pass bad
checks on the occasions charged. Though the prior episodes demonstrate that the
defendant was not above passing a bad check, and may, therefore, be of
questionable character, absent some nexus to the crimes charged, evidence of the
defendant's prior convictions is properly deemed irrelevant. Seeid. at 500, 659 A.2d at 896.

II

The State argues that even if the evidence should not have been admitted
under Rule 404(b), the error was harmless. Our inquiry in a harmless error
analysis is not "whether the evidence, apart from that erroneously admitted,
would support a finding of guilt, but whether it can be said beyond a reasonable
doubt that the inadmissible evidence did not affect the verdict." State v.
Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976). In other words, the
question is "whether the guilty verdict actually rendered in this trial
was surely unattributable to the error," Sullivan v. Louisiana, 508 U.S.
275, 279 (1993), and we must resist a natural temptation simply to "conflate the
harmlessness inquiry with our own assessment of a defendant's guilt," Edwards,
To Err is Human, But Not Always Harmless: When Should Legal Error Be
Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995).

In undertaking a harmless error analysis, we first must determine what
evidence the jury considered as tending to prove or disprove a fact necessary to
reach its verdict -- in this case, that the defendant had the criminal intent to
commit the crime charged. SeeYates v. Evatt, 500 U.S. 391, 404
(1991), overruled on other grounds byEstelle v. McGuire, 502 U.S.
62 (1991). Because we cannot peer into the jurors' minds, we look instead to the
instructions given the jury, working from the assumption "that jurors follow
instructions and, specifically, that they consider relevant evidence on a point
in issue when they are told that they may do so." Id.

At trial, the State had to prove that the defendant committed the charged
offense knowingly. See RSA 638:4. With respect to proof of the
defendant's intent, the court below instructed the jurors that they could use
the defendant's prior convictions

for the purpose of determining whether [the defendant] on the dates and times
that he's alleged to have passed these bad checks knew what he was doing, that
is, had the requisite criminal intent, and knew that those accounts or that
account was closed or had insufficient funds as alleged by the State.

In view of this instruction, we must presume that the jurors did, in fact,
consider the erroneously admitted evidence of the prior convictions in reaching
their verdict.

Next, we must weigh the probative force of the other evidence considered by
the jury as against the force of the erroneously admitted convictions.
SeeYates, 500 U.S. at 404. The issue at this point is whether the
jury actually rested its verdict on evidence establishing the defendant's intent
beyond a reasonable doubt apart from the erroneously admitted convictions.
Because we cannot see into the jurors' minds, we must ask "whether the force of
the evidence presumably considered by the jury in accordance with the
instructions is so overwhelming as to leave it beyond a reasonable doubt that
the verdict resting on that evidence would have been the same in the absence of
the [erroneously admitted convictions]." Id. at 405. Only if the effect
of the erroneously admitted evidence is "comparatively minimal to this degree"
can we say that it "did not contribute to the verdict rendered." Id.

Here, the State's evidence apart from the defendant's prior convictions was
forceful. Officer Dennis Lariviere testified that he informed the defendant
before the checks were passed that the checking account at issue was closed, and
Officer Matthew Hogan testified that the defendant said he knew prior to passing
the checks that the account was closed. This was, and is, compelling evidence
that the defendant committed the crimes charged with the requisite intent.

Simply because the State presented other probative evidence, however, does
not automatically render the prior convictions meaningless for purposes of a
harmless error analysis. These prior convictions, by virtue of their similarity
to the crime charged, had great force of themselves. It would be disingenuous to
argue that this evidence was inconsequential; indeed, we have held that a prior
conviction "is probably only equalled by a confession in its prejudicial impact
upon a jury." Bassett, 139 N.H. at 502, 659 A.2d at 898 (quotation
omitted); seealsoState v. Skidmore, 138 N.H. 201, 202,
636 A.2d 64, 65 (1993).

The question, then, is whether the testimony of the police officers, along
with the other evidence of intent, was so overwhelming as compared to evidence
of the defendant's nineteen prior convictions that we can conclude, beyond a
reasonable doubt, that the latter evidence did not affect the jury's verdict. I
do not believe we can. The force of the erroneously admitted convictions was not
so "comparatively minimal" as to ensure that the verdict would have been the
same in their absence. SeeYates, 500 U.S. at 405. The number and
nature of the convictions could well have persuaded a juror to find that the
defendant possessed the requisite intent on the occasions charged simply because
he had manifested that intent in the past. At the least, this evidence was
precisely the kind with which a juror would likely and reasonably resolve any
lingering doubts about the defendant's guilt.

Given the prejudicial impact of the prior convictions and the fact that the
trial court expressly instructed the jury that it could consider the evidence in
determining whether the defendant acted with the requisite criminal intent on
the occasions charged, I cannot say that the guilty verdict in this case "was
surely unattributable to the error." Sullivan, 508 U.S. at 279.
Consequently, I cannot conclude that the erroneous admission of the defendant's
nineteen prior convictions was harmless beyond a reasonable doubt. SeeBassett, 139 N.H. at 502, 659 A.2d at 898.

III

A primary rationale for the harmless error doctrine is the maintenance of
public respect for the criminal process by not reversing when a trial error is
deemed immaterial. SeeDelaware v. Van Arsdall, 475 U.S. 673, 681
(1986). We should remember, however, that "[w]hen we hold errors harmless, the
rights of individuals, both constitutional and otherwise, go unenforced."
Edwards, supra at 1170. Moreover, "if committing an error has no adverse
effect on the [S]tate, the deterrence of official misbehavior becomes
difficult," Mitchell, Against "Overwhelming" Appellate Activism: Constraining
Harmless Error Review, 82 Cal. L. Rev. 1335, 1366 (1994), a circumstance
equally likely to erode public confidence in the integrity of our criminal
justice system.